In recent
constitutional debates there has been an ongoing discussion about the use and
abuse of states of emergency as a tool for implementing drastic measures in
order to stop, or at least slow down, the pandemic of the new coronavirus
SARS-COV2, which causes the COVID-19 disease. “As states of emergency are
declared throughout the world in response to the spread of COVID-19, concerns
arise as to the use –and potential abuse– of power in a time of crisis”, Joelle
Grogan wrote recently. In Colombia, where I am writing from, many
academic constitutionalists –such as Magdalena
Correa, Rodrigo
Uprimny, Julián
Gaviria-Mira and Esteban Hoyos-Ceballos– have shed light on the
importance of closely monitoring the decisions madeby the national government in the context of the current emergency.
These cannot be disregarded as formalisms only relevant among lawyers, as this
fundamental discussion is underpinned by substantial issues of fundamental rights,
liberties and constitutional democracy. As Roberto
Gargarella asserted recently in a newspaper article about the
coronavirus and the state of emergency in Latin America, “the health emergency
is, perhaps, the most perfect excuse to justify drastic rights restrictions,”
but “we have reasons to think about this matter with more concern” and “analyze
with extreme prudence any call to exchange health protections for basic rights.”

I agree with what has been argued by authors like the ones I quoted in the previous paragraph. I consider that, with the purpose of enriching these discussions, it is convenient to analyze in a comparative level how widespread the use of the state of emergency as a management instrument of the pandemic is. And, if the countries that have used it effectively show a tendency to take more freedom-restrictive measures than the ones that have not. In order to do that, I will present and discuss some data taken from the COVID-19 State of Emergency Data database by the Centre for Civil and Political Rights.

Before
proceeding, however, some caveats are in order. Due to the descriptive nature
of this analysis it would be reckless to draw causal conclusions on the
relationship between the declaration of the state of emergency and the use of measures
restricting freedom and which are aimed at slowing the pandemic, since this
kind of data exploration does not allow one to control for other variables that
might explain why authorities choose one set of policies over others. This is a
descriptive preliminary analysis exercise that I hope contributes to enriching
discussions and that can be improved with comments and perspectives from
readers.

What does the data show?

The
mentioned database includes information from 173 countries. The first thing
that should be noted is that the use of the state of emergency is effectively a
generalized instrument to take measures aimed at mitigating the pandemic, since
almost 50% of the countries included in the database have declared a state of
emergency in the actual situation, while only 22% haven’t done so (there is no
information available for 30% of the countries). This is presented in Table 1.

Table
1. States of emergency declared because
of the pandemic

State of emergency declared?

Number of countries

Percentage of countries

Yes

83

47.98%

No

38

21.97%

No information

52

30.05%

Source: Own elaboration based on the COVID-19 State of
Emergency Data by the Centre for Civil and Political Rights

It
is worth checking if the countries that have declared a state of emergency have
a tendency to take measures restricting freedom to a greater extent than those
in which constitutional normality has been maintained. A clarification is necessary:
in the data that I present here the number of countries in the categories
“State of emergency” and “No State of emergency” don’t add up to the 83 and 38
countries reported in Table 1, since there are information gaps in different
variables regarding several countries.

A first
measure worthy of revision are school closures, which are a public policy designed
to “flatten the curve” of the pandemic. As Graph 1 shows, both in the countries
that have resorted to a state of emergency and the ones that have not, school
closures have been a widely adopted measure. This suggests that, despite how
traumatic they might be, closing
school has been a generally accepted administrative measure to slow down the
contagion rate.

Graph 1. School closures: countries that have declared the state of emergency vs. countries that haven’t

Source: Own elaboration based on the COVID-19 State of Emergency Data by the Centre for Civil and Political Rights

Another
interesting decision is the one related to the prohibition or restriction of
gatherings. Out of 83 countries in which the state of emergency has been decreed,
49% have taken very “hard” measures on prohibitions of gatherings, like curfews
or the prohibition of meetings between more than two people. Only 4% of those
countries haven’t taken any measures towards prohibition of gatherings. In
contrast, from 38 countries in which no state of emergency has been decreed, 21%
have adopted curfews or prohibition of meetings between more than two people,
and in 11% of the cases no policies against gatherings have been implemented. Against
this backdrop, it seems like decision-making of this magnitude, which entails restricting
freedom of movement and public gatherings, is in fact more easily adopted in
countries in which the constitutional emergency has been used.

Graph 2. Prohibition/restriction of gatherings: countries that have declared the state of emergency vs. countries that haven’t

Source: Own elaboration based on the COVID-19 State of Emergency Data by the Centre for Civil and Political Rights

One
extremely delicate measure has been the decision of closing places for
religious practices, like churches and temples. From a public policy perspective
this is a necessary measure and, at least in Colombia, most of
the churches have accepted this measure and implemented virtual rituals instead. However,
it is important to consider that for some religious groups this is a very “spiritually
costly” measure because, from their perspective, virtual worship cannot replace
face-to-face worship. That is the reason why, for example, a group of Catholics
in Spain have asked the government to lift these types of measures and to allow
the celebration of face-to-face masses, adopting biosecurity protocols.

How much
do the measures of closure of worship places vary between the countries that
have declared the state of emergency and the ones that have not? Considerably:
in 42% of the countries under a state of emergency, places of worship have been
completely closed, whereas 16% of them have maintained their normal operations.
In contrast, places of worship remain open in 37% of the countries in which the
state of emergency has not been declared, while in 24% they have been
completely closed. This information is presented in a more detailed way in
Graph 3.

Graph 3. Closure of worship places: countries that have declared the state of emergency vs. countries that haven’t

Source: Own elaboration based on the COVID-19 State of Emergency Data by the Centre for Civil and Political Rights

A
perfectly reasonable measure from the epidemiological standpoint, but with
tragic effects on the life and economy of people and families, is the closure
of business establishments like restaurants and coffee shops. When comparing
this measure between the countries that have declared the state of emergency
and the ones that have not, it is possible to see that it presents a
considerable variation, in the same way as with restriction of gatherings and
the closure of places of worship. Indeed, in 55% of the countries under a state
of emergency this measure has been implemented, while it has not been done in
only 6 percent. Contrary to this, in countries without a state of emergency,
the number of countries that have closed this type of establishments is almost
the same number of countries that have not implemented this measure (Graph 4).

Graph 4. Closure of restaurants and coffee shops: countries that have declared the state of emergency vs. countries that haven’t

Source: Own elaboration based on the COVID-19 State of Emergency Data by the Centre for Civil and Political Rights

Some (very) preliminary conclusions

States of
emergency are a common constitutional tool[2]
premised upon the assumption that the rule of law allows for exceptionality
when ordinary measures from the government are insufficient. In this vein, it
becomes necessary to grant exceptional powers to the Executive branch in such a
way that it can quickly make decisions that normally would require legislative
approval (and that are often restrictive of liberties and citizens’ rights),
with the purpose of dealing with crisis situations.

The
current situation justifies the declaration of states of emergency with the
purpose of governments being able to make hard and sensible decisions that result
in “flattening the curve” of the new coronavirus pandemic. The data that I presented
here suggests that the adoption of measures to restrict certain liberties, such
as the harsh restriction of gatherings, seems to be facilitated by declaration
of a state of emergency. In countries in which constitutional normality has
been maintained, these types of measures are much less common.

However, this
data is not enough to fully support this claim. As I pointed out in the
introduction, this kind of analysis does not allow us to conclude that there is
a causal relationship between the declaration of the state of emergency and the
use of freedom-restrictive measures. This apparent causality could be due to “omitted
variable bias”: there may be variables not included in the
analysis, such as the severity of the outbreak in each country, which explain
both the declaration of the state of emergency and the use of freedom-restrictive
measures. For now, it is possible to conclude that the declaration of the state
of emergency is correlated with the restriction of liberties, but not that the
former is the sole cause of the latter.

In order
to reach stronger conclusions on this matter, it is necessary to include
control variables in the quantitative analysis and to do case studies that
allows us to understand in a detailed manner the type of measures that are
being taken in each country, either under a state of emergency or in a
situation of constitutional normality. While thinking about this important
issues we should always be aware that, as Tom
Ginsburg and Mila Versteeg contend, the extended use of states of
emergency “might lead to a deterioration of civil liberties and constitutional
democracy long-term”, since “many leaders might not easily give up their
newfound powers”.

[1] Alejandro Cortés-Arbeláez is a Colombian
public servant at the Office of the Attorney General in Colombia and lecturer
in Constitutional Theory at the Faculty of Law and Political Science in
Universidad El Bosque (Bogotá, Colombia). Email: alejandrocortes90@gmail.com. Twitter account: @acortesarbe. A previous
version of this article was published
in Spanish in a blog belonging to the Journal of State Law of Universidad
Externado de Colombia. I want to thank Carolina Muñoz for translating this post
and Anamaría Muñoz for her revision and corrections.

[2] According to Tom Ginsburg and Mila Versteeg: “Over 90 percent of constitutions in
force today include emergency clauses that allow the government to step outside
of the ordinary constitutional framework and to take actions that would not
otherwise be permitted. For the duration of the emergency, the government can
rule by decree with few checks on its power. It can suspend rights, though not
without limitations”.

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